Domestic legislation and international human rights standards: the case of mental health and incapacity

Stavert, Jill; McGregor, Rebecca

Abstract

The right to health has been somewhat neglected in discussions about human rights at both national and international levels. States are often reluctant to implement socio-economic rights which they consider to be a resourcing issue, rather than a matter of rights. The right to mental health has received even less attention and is rarely mentioned in national laws and policies, with the focus remaining largely on compulsory care and treatment. The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) therefore provides new impetus to explore the right to health, and mental health in particular, for people with mental disabilities. By considering the rights to health in Article 25 and to rehabilitation and habilitation in Article 26, together with the right to exercise legal capacity under Article 12 CRPD and the support paradigm inherent in this, it may be possible to achieve realisation of the right to mental health in its broadest sense.

This article explores the links between Article 12, the support paradigm and the right to mental health. It also reflects on the existing legislative and human rights framework within Scotland and explores to what extent the right to mental health is currently being realised. It suggests that fully embracing the rights identified in Articles 12, 25 and 26 CRPD is required to achieve a shift in focus away from inappropriate compulsion and towards providing resources and services to support good mental health which could enable the realisation of the right to mental health at the national level

Citation

Stavert, J., & McGregor, R. (2018). Domestic legislation and international human rights standards: the case of mental health and incapacity. International Journal of Human Rights, 22(1), 70-89. https://doi.org/10.1080/13642987.2017.1390307

• Journal Article Type: Article
• Acceptance Date: Nov 6, 2017
• Online Publication Date: Nov 6, 2017
• Publication Date: Jan 2, 2018
• Deposit Date: Nov 6, 2017
• Publicly Available Date: Aug 8, 2019
• Journal: International Journal of Human Rights
• Print ISSN: 1364-2987
• Electronic ISSN: 1744-053X
• Publisher: Routledge
• Peer Reviewed: Peer Reviewed
• Volume: 22
• Issue: 1
• Pages: 70-89
• DOI: https://doi.org/10.1080/13642987.2017.1390307
• Keywords: Mental health, human rights, right to mental health, legal capacity
• Public URL: http://researchrepository.napier.ac.uk/Output/1006973
• Contract Date: Aug 8, 2019